Ramos v. Commissioner of Correction

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JULIO RAMOS v. COMMISSIONER OF CORRECTION
(AC 37498)
DiPentima, C. J., and Beach and Sheldon, Js.*
Argued December 2, 2016—officially released April 18, 2017
(Appeal from Superior Court, judicial district of
Tolland, Sferrazza, J.)
Mark M. Rembish, assigned counsel, for the appel-
lant (petitioner).
Rita M. Shair, senior assistant state’s attorney, with
whom were Gail P. Hardy, state’s attorney, and, on the
brief, Lisamaria T. Proscino, special deputy assistant
state’s attorney, and Vernon D. Oliver, former assistant
state’s attorney, for the appellee (respondent).
Opinion
SHELDON, J. The petitioner, Julio Ramos, appeals,
following the denial of his petition for certification to
appeal, from the judgment of the habeas court dismiss-
ing his second amended petition for a writ of habeas
corpus in this action. In that operative petition, the
petitioner challenged, on the ground of ineffective assis-
tance of counsel, the legality of his custody under judg-
ments of conviction rendered against him in 1997, upon
his negotiated pleas of guilty to three counts of robbery
in the first degree in violation of General Statutes § 53a-
134, one count of felony murder in violation of General
Statutes § 53a-54c, and one count of attempt to commit
robbery in the first degree in violation of General Stat-
utes §§ 53a-49 and 53a-134. On appeal, the petitioner
argues that the habeas court erred in rejecting, and
later abused its discretion in denying, his petition for
certification to appeal from the rejection of his three
part claim that his challenged guilty pleas were not
entered intelligently and voluntarily due to ineffective
assistance of counsel. He asserts, more particularly,
that his pleas were not entered intelligently or volunta-
rily because his trial counsel (1) failed to advise him
of the affirmative defense of mental disease or defect,
which he assertedly could have raised as to all of his
pending charges under General Statutes § 53a-13, based
upon a misinformed evaluation of his mental capacity
at the time of the charged offenses by a forensic psychia-
trist to whom she accidentally gave the medical records
of a different inmate for the purpose of making that
evaluation; (2) failed to conduct an adequate investiga-
tion as to the potential viability of the defense of lack of
intent to commit robbery due to voluntary intoxication,
which he also could have raised as to all pending
charges under General Statutes § 53a-7, before advising
him to plead guilty to those charges; and (3) advised
him not to inform the trial judge that he had taken
prescription drugs on the day of his guilty pleas and
then failed to correct the record when, on the basis of
her advice, he denied such drug use in response to
the judge’s questions during the plea proceeding. We
dismiss the appeal.
The following factual and procedural history is rele-
vant to our resolution of this appeal. On May 6, 1997,
the petitioner pleaded guilty to five charges based on
his admitted involvement in five similar incidents in
June, 1996. In each such incident, the petitioner used
force and violence against one or more employees of
a commercial establishment in an effort to steal money
to fund his addiction to and daily use of heroin1 and
‘‘illy.’’2 The charges to which he entered his guilty pleas,
as previously noted, were: three counts of robbery in
the first degree, in connection with separate incidents
on June 2, 15, and 26, 1996; one count of felony murder,
in connection with a later incident on June 27, 1996;
and one count of attempt to commit robbery in the first
degree, in connection with a final incident on June 30,
1996. During the plea proceeding, the prosecutor set
forth the following factual bases for the charges to
which the petitioner was entering his pleas. On June 2,
15, and 26, 1996, the petitioner committed three armed
robberies in a substantially similar manner. On each of
those dates, the petitioner entered the convenience
store of a Mobil gas station on Washington Street in
Hartford, pretended to select items for purchase, then
produced a handgun and demanded money from the
cashier. In each such incident, the petitioner walked
behind the counter of the store, pistol-whipped the
clerk, then took money from the cash register before
fleeing from the store on foot. Thereafter, on the night
of June 27, 1996, the petitioner and his heroin dealer,
Frederick Wright, agreed to rob Dan’s Shell Station in
West Hartford to obtain money to buy drugs. After
Wright parked a borrowed car in a darkened area away
from the store, the petitioner entered the store, walked
behind the counter, and struck the cashier in the head
with a pistol. During this assault, the petitioner shot
and killed the cashier before taking money from the
cash register and fleeing from the store on foot.3 Three
days later, on June 30, 1996, the petitioner entered
another convenience store in Hartford and, once again
pretended to select items for purchase, then walked
behind the counter, produced a handgun and
approached the clerk. At that point, however, the clerk
attempted to grab the petitioner’s gun and a struggle
ensued. Although the petitioner struck the clerk several
times in the head, the clerk surrendered no property
to the petitioner, who eventually dropped his pistol
and fled from the scene without taking anything. The
petitioner was arrested within minutes of this attempted
robbery. After being treated for injuries he sustained
while he was being arrested, the petitioner returned
to the Hartford police station, where he waived his
Miranda rights4 and admitted his involvement in each
of the previously described incidents, including the
June 27 robbery and shooting in West Hartford.
After he was arrested and gave his self-incriminating
statement, the petitioner was presented in court, where
he applied for the services of the public defender. Upon
the granting of his application, Attorney Karen A. Goo-
drow was appointed to represent him. Over the course
of the following year, Goodrow met with the petitioner
several times to discuss his case. During one of those
meetings, the petitioner informed Goodrow that he had
used both heroin and ‘‘illy’’ every day in June, 1996, and
that he had been under the influence of the two drugs
during each of the previously described incidents. He
further claimed that, because he had used heroin and
‘‘illy’’ on the night of June 27, 1996, he could not specifi-
cally remember robbing the store where the clerk had
been shot and killed, or shooting the clerk. The peti-
tioner also informed Goodrow that sometime between
the June 27 robbery and shooting and the June 30
attempted robbery that immediately preceded his
arrest, he had smoked ‘‘illy’’ and attempted to commit
suicide by placing a single round of ammunition into a
revolver and pulling the trigger several times.
During the habeas trial, Goodrow testified that when
she was first appointed to represent the petitioner, she
was unfamiliar with the drug ‘‘illy,’’ because the peti-
tioner was the first client she had ever represented who
claimed to have committed a crime while under the
influence of that drug. Accordingly, after she learned
of the petitioner’s claim that he had continuously used
a combination of heroin and ‘‘illy’’ throughout the month
of June, 1996, Goodrow explored the viability of several
possible defenses to the charged offenses based upon
the petitioner’s claimed use of that drug, in combination
with heroin, at the time of his allegedly criminal con-
duct, including the affirmative defense of mental dis-
ease or defect under § 53a-135 and the defense of lack
of intent to commit robbery by reason of voluntary
intoxication under § 53a-7.6
To that end, Goodrow hired Dr. Peter Zeman, an
experienced forensic psychiatrist, to conduct a psychi-
atric evaluation of the petitioner in order to assess the
strength of those possible defenses and to determine
‘‘whether or not there was any mitigation evidence or
evidence of intoxication.’’ Prior to Zeman’s evaluation,
Goodrow received an authorization from the petitioner
to obtain his medical records from the Department of
Correction (DOC). The records she received pursuant
to the authorization, however, belonged to a different
inmate, who had the same first and last names as the
petitioner but a different date of birth.7 Failing to recog-
nize that she had received medical records for the
wrong Julio Ramos, Goodrow forwarded those records,
along with the petitioner’s own hospital records,8 to
Zeman for his review. Sometime after receiving such
records, Zeman met with the petitioner and performed
a twenty minute psychiatric evaluation of him.
On April 10, 1997, Goodrow met with Zeman to dis-
cuss his evaluation of the petitioner. During that meet-
ing, Zeman informed Goodrow that he did not believe
that the petitioner was psychotic at the time of the
incidents here at issue, and thus that he did not believe
that a defense of mental defect or disease was sup-
ported by the evidence. Zeman also informed Goodrow
that, although he had little experience with the drug
‘‘illy,’’ he did not believe that the petitioner’s use of ‘‘illy’’
affected his state of consciousness to such a degree that
he lacked the ability to form the intent required to
commit robbery in any of the five incidents upon which
the charges against him were based. In reliance upon
Zeman’s opinions, Goodrow abandoned her pursuit of
both the affirmative defense of mental disease or defect
and the defense of lack of intent to commit robbery
due to voluntary intoxication. Consequently, Goodrow
did not ask Zeman to memorialize his opinions in a
formal report.
Goodrow then entered into plea negotiations with
the state. In light of the number and severity of the
crimes with which he was charged, the petitioner faced
a total exposure of over 140 years in prison if he were
convicted on all charges. On April 15, 1997, Goodrow
received an offer from the state, under which it would
agree to cap the petitioner’s sentence at a maximum
of fifty years with the right to argue for a lesser sentence,
if the petitioner would agree to plead guilty to three
counts of robbery in the first degree, one count of felony
murder, and one count of attempt to commit robbery
in the first degree. On May 6, 1997, Goodrow presented
the state’s offer to the petitioner and advised him, in
light of the apparent strength of the state’s evidence and
the lack of any viable defense based upon his voluntary
intoxication, that he should accept it. That afternoon,
the petitioner appeared before the court, Schimelman,
J., where, upon being canvassed, he pleaded guilty to
the five charges in accordance with the state’s offer.
On July 11, 1997, the petitioner was sentenced by the
trial court, Espinosa, J., to fifty years in prison on the
charge of felony murder, twenty years in prison on the
charge of attempt to commit robbery in the first degree,
and twenty years in prison on each of the three charges
of robbery in the first degree. All of the petitioner’s
prison sentences were ordered to be served concur-
rently with one another, for a total effective sentence
of fifty years. The petitioner did not appeal from his con-
victions.
On December 17, 2009, the petitioner commenced
the present habeas corpus action on the ground that
he had received ineffective assistance of counsel in
connection with his guilty pleas, and thus that those
pleas had not been entered intelligently and voluntarily.
Specifically, the petitioner alleged that Goodrow had
rendered ineffective assistance of counsel in connec-
tion with his guilty pleas because she: (1) failed to
advise him of the affirmative defense of mental disease
or defect, which he assertedly could have raised as to
all of his pending charges under § 53a-13, based upon
a misinformed evaluation of his mental capacity at the
time of the charged offenses by a forensic psychiatrist
to whom she accidentally gave the medical records
of a different inmate for the purpose of making that
evaluation; (2) failed to conduct an adequate investiga-
tion as to the potential viability of the defense of lack of
intent to commit robbery due to voluntary intoxication,
which he also could have raised as to all pending
charges under § 53a-7, before advising him to plead
guilty to those charges; and (3) advised him not to
inform the trial judge that he had taken prescription
drugs on the day of his guilty pleas and then failed to
correct the record when, on the basis of her advice, he
denied such drug use in response to the judge’s ques-
tions during the plea proceeding. The petitioner argued
that, but for Goodrow’s inadequate investigation into
either the affirmative defense of mental disease or
defect or the defense of lack of intent to commit robbery
due to voluntary intoxication, and but for the fact that
he was under the influence of prescription medication
at the time he pleaded guilty, there is a reasonable
probability that he would have pleaded not guilty and
instead would have insisted on going to trial. In his
prayer for relief, the petitioner requested that the court
either vacate his guilty pleas so that he could proceed
to trial or, in the alternative, vacate his sentence so he
could be resentenced, pursuant to his plea bargain with
the state, in light of the true psychiatric information
about him, as set forth in his own DOC medical records.
Following the habeas trial, on November 17, 2014,
the court, Sferrazza, J., denied the petitioner’s petition
for a writ of habeas corpus. In its memorandum of
decision, the habeas court did not distinguish between
the affirmative defense of mental disease or defect and
the defense of lack of intent to commit robbery due
to voluntary intoxication. Instead, referring to them
collectively as a ‘‘potential, voluntary intoxication
defense,’’ the court found that ‘‘Goodrow performed,
in every respect, with the utmost professional care and
sage advice on the topics of a potential, voluntary intoxi-
cation defense and all the information necessary for
the petitioner to make voluntary and knowing guilty
pleas. She had the petitioner examined by Dr. Zeman
to discover whether the petitioner’s extensive drug use,
including the use of illy and heroin, provided a viable
defense of voluntary intoxication. Goodrow quite cor-
rectly concluded that such drug usage by the petitioner
was insufficient to establish such a defense. The peti-
tioner presented no expert witness in the criminal
defense field who criticized Goodrow’s representation
of the petitioner in any way, nor disputed her opinion
and advice concerning the lack of a bona fide voluntary
intoxication defense.’’ (Internal quotation marks omit-
ted.) With regard to the petitioner’s claim that he was
medicated at the time he entered his guilty pleas, the
habeas court found that ‘‘[t]he credible evidence
adduced at the habeas trial demonstrates that the peti-
tioner possessed a state of mind at the time of his guilty
pleas such that those pleas were entered intelligently,
knowingly, and willingly. He now contends that he was
under the influence of medication at the time he pleaded
guilty; however, that testimony is contradicted by his
responses during his plea canvass. The court disbe-
lieves his testimony to the contrary.’’
On the basis of the foregoing findings, the habeas
court determined that the petitioner had ‘‘failed to meet
his burden of proving, by a preponderance of the evi-
dence, that, but for the erroneous information in the
Department of Correction’s mental records, he would
have elected to have his fate determined by trial rather
than through pleas of guilty.’’ The court then denied
the petitioner’s operative petition for a writ of habeas
corpus. Thereafter, on December 5, 2014, the court
denied the petitioner’s petition for certification to
appeal from its judgment denying the habeas petition.
This appeal followed. Additional facts and procedural
history will be set forth as necessary.
Our standard of review on an appeal from the dis-
missal of a habeas corpus petition where the habeas
court has denied the petitioner’s petition for certifica-
tion to appeal is well established. ‘‘Faced with a habeas
court’s denial of a petition for certification to appeal,
a petitioner can obtain appellate review of the dismissal
of his petition for habeas corpus only by satisfying the
two-pronged test enunciated by our Supreme Court in
Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994),
and adopted in Simms v. Warden, 230 Conn. 608, 612,
646 A.2d 126 (1994). First, [the petitioner] must demon-
strate that the denial of his petition for certification
constituted an abuse of discretion. . . . Second, if the
petitioner can show an abuse of discretion, he must
then prove that the decision of the habeas court should
be reversed on the merits.’’ (Internal quotation marks
omitted.) Melendez v. Commissioner of Correction, 151
Conn. App. 351, 357–58, 95 A.3d 551, cert. denied, 314
Conn. 914, 100 A.3d 405 (2014). ‘‘A petitioner may estab-
lish an abuse of discretion by demonstrating that the
issues are debatable among jurists of reason . . . [the]
court could resolve the issues [in a different manner]
. . . or . . . the questions are adequate to deserve
encouragement to proceed further. . . . In determin-
ing whether the habeas court abused its discretion in
denying the petitioner’s request for certification, we
necessarily must consider the merits of the petitioner’s
underlying claims to determine whether the habeas
court reasonably determined that the petitioner’s
appeal was frivolous.’’ (Internal quotation marks omit-
ted.) Burgos-Torres v. Commissioner of Correction,
142 Conn. App. 627, 630–31, 64 A.3d 1259, cert. denied,
309 Conn. 909, 68 A.3d 663 (2013); Rosado v. Commis-
sioner of Correction, 129 Conn. App. 368, 371–72, 20
A.3d 85, cert. denied, 302 Conn. 916, 27 A.3d 368 (2011).
In his petition for certification to appeal, the peti-
tioner sought permission to appeal from the dismissal
of each part of his three part claim of ineffective assis-
tance of counsel in connection with his challenged
guilty pleas. Accordingly, we must ‘‘examine [each of]
the petitioner’s underlying claim[s] of ineffective assis-
tance of counsel in order to determine whether the
habeas court abused its discretion in denying [his] peti-
tion for certification to appeal.
‘‘Our standard of review of a habeas court’s judgment
on ineffective assistance of counsel claims is well set-
tled. In a habeas appeal, this court cannot disturb the
underlying facts found by the habeas court unless they
are clearly erroneous, but our review of whether the
facts as found by the habeas court constituted a viola-
tion of the petitioner’s constitutional right to effective
assistance of counsel is plenary.’’ (Internal quotation
marks omitted.) Vazquez v. Commissioner of Correc-
tion, 128 Conn. App. 425, 429, 17 A.3d 1089, cert. denied,
301 Conn. 926, 22 A.3d 1277 (2011).
‘‘A petitioner’s right to the effective assistance of
counsel is guaranteed by the sixth and fourteenth
amendments to the United States constitution, and by
article first, § 8, of the Connecticut constitution. . . .
The right to counsel, however, is the right to effective
assistance and not the right to perfect representation.’’
(Internal quotation marks omitted.) Lewis v. Commis-
sioner of Correction, 89 Conn. App. 850, 854–55, 877
A.2d 11, cert. denied, 275 Conn. 905, 882 A.2d 672 (2005).
‘‘In Strickland v. Washington, [466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States
Supreme Court established that for a petitioner to pre-
vail on a claim of ineffective assistance of counsel, he
must show that counsel’s assistance was so defective
as to require reversal of [the] conviction . . . . That
requires the petitioner to show (1) that counsel’s perfor-
mance was deficient and (2) that the deficient perfor-
mance prejudiced the defense.’’ (Internal quotation
marks omitted.) Vazquez v. Commissioner of Correc-
tion, supra, 128 Conn. App. 430.
‘‘To establish the first prong of the Strickland test,
the petitioner must first establish that his attorney’s
performance was not reasonably competent or within
the range of competence displayed by lawyers with
ordinary training and skill in the criminal law . . . .’’
(Internal quotation marks omitted.) Lewis v. Commis-
sioner of Correction, supra, 89 Conn. App. 855. Where
a petitioner has pleaded guilty, the second prong is
governed by the United States Supreme Court’s decision
in Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L.
Ed. 2d 203 (1985). ‘‘In order to establish prejudice in
such cases, the petitioner must demonstrate that there
is a reasonable probability that, but for counsel’s errors,
he would not have pleaded guilty and would have
insisted on going to trial.’’ (Internal quotation marks
omitted.) Yerinides v. Commissioner of Correction,
156 Conn. App. 71, 77, 111 A.3d 961 (2015); see also
Crawford v. Commissioner of Correction, 285 Conn.
585, 598, 940 A.2d 789 (2008). ‘‘Unless a [petitioner]
makes both showings, it cannot be said that the convic-
tion . . . resulted from a breakdown in the adversary
process that renders the result unreliable.’’ (Internal
quotation marks omitted.) Vazquez v. Commissioner
of Correction, supra, 128 Conn. App. 430.
With these principles in mind, we address the merits
of each of the petitioner’s claims of ineffective assis-
tance of counsel.
I
The petitioner’s first claim of ineffective assistance
in connection with his guilty pleas in this case is that
those pleas were not entered intelligently or voluntarily
due to erroneous advice from Goodrow that he had no
viable affirmative defense of mental disease or defect
in this case. That advice, he claims, was erroneous
because it was based, in material part, upon the misin-
formed opinion of Dr. Zeman as to the petitioner’s men-
tal capacity at the time of the charged offenses, which
opinion, in turn, was mistakenly based upon the exami-
nation of medical records for the wrong Julio Ramos,
which Goodrow had given to him in error. The peti-
tioner asserts that, had Goodrow provided the correct
medical records to Zeman, or had he known that
Zeman’s evaluation was based on the wrong medical
records, there is a reasonable probability that he would
pleaded not guilty and instead would have insisted on
going to trial. Although the petitioner has raised a color-
able claim, debatable among jurists of reason, that his
counsel rendered deficient performance in basing her
advice to plead guilty upon the mental capacity evalua-
tion by a psychiatrist to whom she gave the wrong
medical records, we agree with the habeas court that
the petitioner failed to establish that he was prejudiced
by that alleged deficiency in this case. We thus conclude
that the habeas court did not abuse its discretion in
denying his petition for certification to appeal on
that ground.
The following additional facts are necessary for our
resolution of this aspect of the petitioner’s ineffective
assistance claim. At the habeas trial, Goodrow testified
that during the initial stages of her investigation, she
met with the petitioner several times and discussed
his mental health issues, including his problems with
depression, auditory hallucinations, and attempted sui-
cide. She also recalled that, after one of those meetings,
her investigator received an authorization from the peti-
tioner to obtain a copy of his DOC medical records.
Thereafter, she received medical records from the DOC,
which were accompanied by a cover sheet bearing the
petitioner’s correct name, date of birth, and inmate
number. Goodrow testified that she could not remem-
ber if she reviewed those medical records with the
petitioner, but that had she done so, she would have
noted that discussion in her files. She then provided
those medical records to Zeman and asked him to assess
whether the evidence in them could support an affirma-
tive defense of mental disease or defect. Goodrow
stated that, based upon Zeman’s negative assessment,
she did not feel that the petitioner could raise a viable
affirmative defense of mental disease or defect at trial.
Goodrow did not learn that she had obtained the wrong
medical records from the DOC until the morning of her
testimony at the habeas trial.
Later in the habeas trial, the petitioner testified as to
his mental health both in June, 1996, when the incidents
underlying his guilty pleas were taking place, and from
the date of his arrest, June 30, 1996, through the date
of his guilty pleas, May 6, 1997. Specifically, he testified:
that he had used heroin and ‘‘illy’’ on a daily basis in
June, 1996; that he had smoked ‘‘illy’’ and attempted
to commit suicide after he killed the victim in West
Hartford; and that after his arrest, during the first year
of his incarceration, he had been prescribed several
antipsychotic medications to manage the depression
and the auditory hallucinations he was then experienc-
ing. With regard to his psychiatric evaluation by Zeman,
the petitioner stated that he had informed Zeman of
his substance abuse and mental health issues, but that
Zeman had not taken any notes during their meeting.
The petitioner also testified that Goodrow had never
reviewed his medical records with him, explained to
him the affirmative defense of mental disease or defect,
told him why he was being evaluated by Zeman, or
discussed with him Zeman’s ultimate opinions regard-
ing his case. Finally, the petitioner stated that he did
not become aware that his counsel had given Zeman
the wrong DOC medical records to examine in reaching
his evaluation until after he was sentenced.
In addition to this testimony, the petitioner offered
two sets of medical records into evidence. First, he
offered the incorrect medical records that Goodrow
had received from the DOC. Those records were offered
to show that the other Julio Ramos had far fewer psychi-
atric issues and a much less severe drug history, than
the petitioner. Second, the petitioner offered his own
DOC medical records for the relevant time frame to
demonstrate that, had Goodrow provided those records
to Zeman for his review, his assessment of ‘‘the petition-
er’s true mental state would have been drastically dif-
ferent.’’
The petitioner’s correct medical records documented
the petitioner’s first several months of incarceration,
between July 1, 1996 and April 23, 1997. Several entries
in those records supported the petitioner’s claims that
he had a history of suicide attempts and that he was
experiencing auditory hallucinations and taking anti-
psychotic medications between July, 1996 and April,
1997. Additionally, a July 1, 1996 entry supported the
petitioner’s claim that he had attempted to commit sui-
cide after killing the victim of the West Hartford rob-
bery. At least one evaluator, however, opined that the
petitioner was not psychotic, but rather that he suffered
from post-traumatic stress disorder as a result of that
killing. This opinion was consistent with several evalua-
tions of the petitioner in his medical records that stated
that the evaluators did not detect symptoms of overt
psychosis in the petitioner’s presentation. With these
additional facts in mind, we address the merits of the
petitioner’s first claim.
‘‘A habeas petitioner can prevail on a constitutional
claim of ineffective assistance of counsel [only if he
can] establish both (1) deficient performance, and (2)
actual prejudice.’’ (Internal quotation marks omitted.)
Merle S. v. Commissioner of Correction, 167 Conn.
App. 585, 599, 143 A.3d 1183 (2016). ‘‘Where, as here,
a defendant is represented by counsel during the plea
process and enters his plea upon the advice of counsel,
the voluntariness of the plea depends on whether coun-
sel’s advice was within the range of competence
demanded of attorneys in criminal cases.’’ (Internal quo-
tation marks omitted.) Hill v. Lockhart, supra, 474 U.S.
56. If he can establish that his counsel’s advice was
objectively unreasonable, ‘‘[t]he [petitioner] must . . .
[then] demonstrate that there was such an interrelation-
ship between the ineffective assistance of counsel and
the guilty plea that it can be said that the plea was
not voluntary and intelligent because of the ineffective
assistance.’’ Buckley v. Warden, 177 Conn. 538, 543, 418
A.2d 913 (1979). The failure to make both necessary
showings is fatal to a petitioner’s claim that his guilty
plea was entered involuntarily. ‘‘All of the circum-
stances surrounding the entry of the guilty plea in court
should be considered in determining the voluntariness
of the plea.’’ Williams v. Reincke, 157 Conn. 143, 148,
249 A.2d 252 (1968). ‘‘If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient
prejudice . . . that course should be followed.’’ (Inter-
nal quotation marks omitted.) Smith v. Commissioner
of Correction, 141 Conn. App. 626, 632, 62 A.3d 554,
cert. denied, 308 Conn. 947, 67 A.3d 290 (2013).
Though we need not address the performance prong
of this analysis, we observe at the outset that, on this
record, the petitioner has raised a colorable claim,
debatable among jurists of reason, on the issue of defi-
cient performance. In this case, Goodrow interviewed
the petitioner several times in a commendable attempt
to learn as much as she could about her client’s mental
capacity at the time of the charged offenses, employed
an investigator to work on his case, requested his medi-
cal records from the DOC, and retained an expert to
assess the potential viability of the affirmative defense
of mental disease or defect. In this respect, Goodrow’s
conduct was certainly thorough and professionally
appropriate. By undertaking these efforts, however, she
assumed an obligation to conduct her investigation in
a constitutionally adequate manner, which required her
to obtain and furnish accurate medical information to
the expert with whom she consulted with so that the
expert’s opinion would be well-grounded and she could
appropriately rely upon it in developing her case strat-
egy and advising her client whether to go to trial. Due
to a series of unfortunate events, however, Goodrow
received medical records for someone other than her
client, but failed to review them with sufficient care
and attention to discover the error. Those incorrect
records were then transmitted to Zeman, so that he
could review them before interviewing the petitioner
and forming his opinions about his mental capacity at
the time of the charged offenses. Regrettably, Goodrow
was unaware of her mistake in transmitting the wrong
medical records for Zeman’s review until the morning of
the habeas trial, long after her client had pleaded guilty.
As a result of Goodrow’s mistake, Zeman’s opinion
as to the viability of the petitioner’s potential affirmative
defense of mental disease or defect was based, at least
in part, upon erroneous information. By the same token,
Goodrow’s advice to the petitioner, which itself was
based in material part upon Zeman’s misinformed opin-
ion, was also erroneous. Although the record makes it
clear that this mistake was completely unintentional,
we conclude that it is at least debatable among jurists
of reason whether the making of such a mistake when
reviewing critical medical records that purportedly
belong to one’s own client satisfies the minimum
requirements of our state and federal constitutions as
to the adequacy of trial counsel’s performance.
Notwithstanding this conclusion, however, we agree
with the habeas court that the petitioner failed to dem-
onstrate that he was prejudiced by this aspect of Goo-
drow’s performance in this case. Accordingly, we
conclude that the habeas court did not abuse its discre-
tion when it dismissed the petitioner’s claim for relief
on that ground, or later denied his petition for certifica-
tion to appeal from the dismissal of that claim.
We are reminded that the petitioner’s second
amended petition stated two alternative prayers for
relief. First, he requested that the court vacate his guilty
pleas so that he might proceed to trial. Second, he
requested that the court vacate his sentences so that
he might be resentenced, pursuant to his plea
agreement with the state, in light of the information
contained in his DOC medical records. Each prayer
for relief implicates a different standard for assessing
prejudice, and thus we address each separately.
A
With regard to the petitioner’s request that his guilty
plea be vacated so that he might proceed to trial, we
agree with the habeas court that the petitioner has failed
to demonstrate a reasonable probability that, but for
Goodrow’s deficient performance, he would not have
pleaded guilty and instead would have insisted on going
to trial. See Hill v. Lockhart, supra, 474 U.S. 59. Accord-
ingly, we conclude that the habeas court did not abuse
its discretion in denying the petition for certification
to appeal.
Where a petitioner who has pleaded guilty subse-
quently alleges that his guilty plea was the product of
ineffective assistance of counsel, ‘‘the petitioner must
demonstrate that there is a reasonable probability that,
but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.’’ (Inter-
nal quotation marks omitted.) Yerinides v. Commis-
sioner of Correction, supra, 156 Conn. App. 77. The
United States Supreme Court has held that ‘‘where the
alleged error of counsel is a failure to advise the defen-
dant of a potential affirmative defense to the crime
charged, the resolution of the prejudice inquiry will
depend largely on whether the affirmative defense likely
would have succeeded at trial . . . [and thus would
have led counsel to change her recommendation as to
the plea]. . . . [T]hese predictions of the outcome at
a possible trial, where necessary, should be made objec-
tively, without regard for the idiosyncrasies of the par-
ticular decisionmaker.’’ (Citations omitted; internal
quotation marks omitted.) Hill v. Lockhart, supra, 474
U.S. 59–60; Carraway v. Commissioner of Correction,
144 Conn. App. 461, 472–73, 72 A.3d 426 (2013), appeal
dismissed, 317 Conn. 594, 119 A.3d 1153 (2015). ‘‘Analy-
sis of the strength of the state’s case and the viability
of unadvanced defense strategies informs this analysis,
but it is not by itself determinative.’’ Carraway v. Com-
missioner of Correction, supra, 476.
The petitioner claims that Goodrow never informed
him about the potential availability of the affirmative
defense of mental disease or defect and that, had she
done so, there is a reasonable probability that he would
have insisted on going to trial. In the alternative, he
alleges that had he known that Zeman’s opinion was
based upon the wrong medical information, he would
have insisted on going to trial ‘‘for everything to be
correct.’’ The petitioner was obligated to establish sev-
eral necessary facts in order to demonstrate a reason-
able probability that he would have insisted on going
to trial had counsel properly advised him of the possible
availability of the affirmative defense of mental disease
or defect, based upon the proper advice from Zeman
as to the viability of such defense. They included: first,
that the affirmative defense of mental disease or defect
was at least theoretically available to the petitioner
based upon the facts of this case; second, that such
affirmative defense was factually supported by at least
some evidence available to the petitioner at trial; third,
that the potential viability of that affirmative defense
would have been established, in material part, by the
contents of his DOC medical records and/or Zeman’s
likely testimony based upon them; fourth, that the
potential viability of that affirmative defense, as sup-
ported by the petitioner’s own medical records and
Zeman’s probable advice based upon it, would have
been strong enough to require an attorney of ordinary
skill and training in the criminal law to advise him
of the potential costs and benefits of asserting that
affirmative defense; and fifth, that had Goodrow
advised him of such potential costs and benefits, it is
reasonably probable that he would have decided to go
to trial. For the following reasons, we conclude that
the petitioner failed to meet his burden of establish-
ing prejudice.
First and foremost, the affirmative defense of mental
disease or defect is legally unavailable on the facts of
this case in light of the petitioner’s own description of
the conduct on which its assertion would have been
based, to wit: his voluntary ingestion of heroin and ‘‘illy’’
in the month of June, 1996. Section 53a-13 (a), which
generally defines that affirmative defense, provides: ‘‘In
any prosecution for an offense, it shall be an affirmative
defense that the defendant, at the time he committed
the proscribed act or acts, lacked substantial capacity,
as a result of mental disease or defect, either to appreci-
ate the wrongfulness of his conduct or to control his
conduct within the requirements of the law.’’ Section
53a-13 (b), however, limits the availability of that affir-
mative defense by providing in part: ‘‘It shall not be a
defense under this section if such mental disease or
defect was proximately caused by the voluntary inges-
tion, inhalation or injection of intoxicating liquor or any
drug or substance, or any combination thereof . . . .’’
In light of that express statutory limitation, we must
conclude that the affirmative defense of mental disease
or defect would not have been viable in this case as a
matter of law.
Consistent with this logic, the record contains no
evidence that the affirmative defense of mental disease
or defect could have been raised at all, much less raised
successfully, at trial. Any evidence of the petitioner’s
claimed voluntary drug use in the relevant time frame
would have tended to defeat, rather than to support,
that affirmative defense.
Furthermore, although it is true that the petitioner’s
own medical records, as they ultimately were produced
and examined at trial, did suggest that he experienced
hallucinations, had suicidal ideation, and was pre-
scribed antipsychotic medications between July, 1996,
and April, 1997, such evidence did not, without more,
establish that he experienced any of these problems in
June, 1996, or thus that he may have lacked substantial
capacity to appreciate the wrongfulness of his conduct
or to control his conduct within the requirements of
the law ‘‘at the time he committed the proscribed act
or acts . . . .’’ (Emphasis added.) General Statutes
§ 53a-13 (a). Furthermore, the evaluations within these
later records do not support the proposition that the
petitioner suffered from psychosis in June, 1996. In fact,
his assertion that this defense would have succeeded
at trial is belied by several opinions within the medical
records that the petitioner’s decline in mental health
was not indicative of a prolonged state of psychosis,
but rather was a manifestation of the trauma and grief
that he suffered after he killed the victim of the West
Hartford robbery. This opinion is further supported by
the fact that the petitioner attempted to commit suicide
after he killed the victim in this case. Thus, the habeas
record contains insufficient evidence to support a find-
ing that a defense of mental defect or disease likely
would have succeeded at trial.
In addition to the lack of a viable affirmative defense,
we are cognizant of the strength of the state’s case and
the risks associated with proceeding to trial. In this
case, the petitioner was charged with a total of fifteen
crimes in five separate informations. Had he elected to
proceed to trial on the five charges to which he pleaded
guilty alone, he would have faced a total exposure, if
convicted, of 140 years in prison. He ultimately pleaded
guilty to those five charges in exchange for a sentence
capped at fifty years to serve, with the right to argue
for a lesser sentence. Had the petitioner elected to pro-
ceed to trial, he faced a nearly insurmountable quantity
of incriminating evidence. The state’s evidence con-
sisted of testimony from eyewitnesses as to each of the
five robberies, physical descriptions of the perpetrator
by such eyewitnesses that matched the petitioner in
height, weight, and complexion, and voluntary confes-
sions from both the petitioner and his codefendant,
Wright, admitting their involvement in the June 27 rob-
bery and felony murder. See part II of this opinion.
Against the background of this highly inculpatory evi-
dence, the petitioner’s chances of being acquitted of
these charges hinged entirely upon the likelihood of
his success in raising either the affirmative defense of
mental disease or defect or, in the alternative, a claim
of lack of intent to commit a robbery by reason of
voluntary intoxication. As discussed in the preceding
paragraphs, however, the petitioner failed to put forth
sufficient evidence to support a finding that the affirma-
tive defense of mental defect or disease likely would
have succeeded at trial. As further discussed in part II
of this opinion, the events surrounding the five armed
robberies seriously undermined the petitioner’s defense
of lack of intent to commit robbery by reason of volun-
tary intoxication.
It is well established that ‘‘[a] reasonable probability
is a probability sufficient to undermine confidence in
the outcome’’; Strickland v. Washington, supra, 466
U.S. 694; and that the petitioner’s burden of establishing
such a probability ‘‘is not met by speculation . . . but
by demonstrable realities.’’ (Emphasis in original; inter-
nal quotation marks omitted.) Gonzalez v. Commis-
sioner of Correction, 127 Conn. App. 454, 458, 14 A.3d
1053, cert. denied, 302 Conn. 933, 28 A.3d 991 (2011).
Considering the strength of the state’s case; see Carra-
way v. Commissioner of Correction, supra, 144 Conn.
App. 476; the low probability that an affirmative defense
of mental defect or disease would have succeeded at
trial; see id., 475; and the fact that the petitioner’s overall
exposure was several times greater than the maximum
sentence that the state agreed to under his plea deal;
see Yerinides v. Commissioner of Correction, supra,
156 Conn. App. 75, 78; we conclude that the petitioner
has failed to establish a reasonable probability that, but
for Goodrow’s mistaken transmission to Zeman of the
wrong medical records and its consequences, he would
have insisted on going to trial. Therefore, we agree with
the habeas court that the petitioner failed to demon-
strate that he was prejudiced by Goodrow’s perfor-
mance. See Carraway v. Commissioner of Correction,
supra, 472–73. ‘‘Because the petitioner failed to estab-
lish that he was prejudiced by [counsel’s] deficient per-
formance, he cannot demonstrate that the issues
pertaining to this claim are debatable among jurists of
reason, that a court could resolve those issues differ-
ently or that the questions raised deserve encourage-
ment to proceed further.’’ Sanders v. Commissioner of
Correction, 169 Conn. App. 813, 824, 153 A.3d 8 (2016).
Accordingly, we conclude that the habeas court did not
abuse its discretion in denying the petitioner’s petition
for certification to appeal with respect to his first inef-
fective assistance claim.
B
With regard to the petitioner’s second prayer for
relief, which was that the court vacate his guilty plea
so that he could be resentenced, pursuant to the state’s
plea offer, in light of his correct medical information,
we conclude that the petitioner has failed to present
sufficient evidence to establish a reasonable probability
that, but for counsel’s alleged error, he would have
received a lesser sentence. As such, we agree with the
habeas court that the petitioner failed to demonstrate
that he was prejudiced in this matter and conclude that
the habeas court did not abuse its discretion in denying
his petition for certification to appeal.
The following facts are necessary for our resolution
of this claim. During the habeas trial, Goodrow testified
that the state’s plea offer ‘‘was a cap of fifty years with
a right to argue for less . . . [and the judge] indicated
not to be hopeful about . . . the securing of a lesser
sentence.’’ Goodrow further testified that on the morn-
ing of May 6, 1997, she informed the petitioner that ‘‘if
he pled guilty, he must do so assuming that he will do,
day for day, fifty years, and if he gets out in less it’s a
gift.’’ When asked on cross-examination whether she
thought that the state’s offer was reasonable, Goodrow
stated, ‘‘Well, good is relative. He could have faced a
whole lot more time. Then, I have to say to him, as I
did, if you’re going to take this, you have to believe that
you’re getting day [for] day. You can’t somewhere in
your heart say, I’m going to take this plea bargain
because I really know I’m only going to do forty-two
years. . . . I thought forty years was reasonable,
given everything.’’
In addition to the testimony at the habeas trial, the
relevant transcripts reveal that the court, Schimelman,
J., informed the petitioner, ‘‘I want you to understand
. . . that although your lawyer has a right to argue for
a lesser sentence, there are no guarantees here, and
the only way that you are going to be able to withdraw
this [guilty plea] is that if the sentencing judge decides
that you should be sentenced to more than fifty years
as a total effective sentence, otherwise, you are going
to be bound by this agreement and you are not going
to be able to withdraw it; do you understand that?’’ The
petitioner responded in the affirmative. The transcript
generated in connection with the sentencing hearing
reveals that the court, Espinosa J., took judicial notice
of Zeman’s and Goodrow’s concerns regarding the peti-
tioner’s decline in mental health following his arrest.
Before the court sentenced the petitioner, Goodrow
presented the following mitigating evidence: that over
the course of his life, the petitioner had faced great
adversity, including problems with drug addiction and
mental health; that, other than the crimes to which he
was about to plead guilty, he had a limited criminal
record; that he had demonstrated the ability to secure
and maintain employment until his heroin addiction
spiraled out of control; that he was currently being
treated for the trauma and grief he experienced after
he took the life of another; and that, although these
events resulted in the loss of an innocent life, the court’s
sentence should strive to achieve a balance between
punishment and an opportunity for the petitioner to
rehabilitate. With these additional facts in mind, we
now address the petitioner’s claim.
In a habeas proceeding, ‘‘[w]here the claimed differ-
ence in the result of the proceedings is a difference in
sentence, a petitioner must show a reasonable probabil-
ity that but for counsel’s error, the sentence would
have been lighter than the sentence actually imposed.’’
(Internal quotation marks omitted.) Crawley v. Com-
missioner of Correction, 141 Conn. App. 660, 667, 62
A.3d 1138, cert. denied, 308 Conn. 946, 68 A.3d 656(2013). This burden ‘‘is not met by speculation . . .
but by demonstrable realities.’’ (Emphasis in original;
internal quotation marks omitted.) Gonzalez v. Com-
missioner of Correction, supra, 127 Conn. App. 458.
In the present case, the petitioner failed to show what
additional information Goodrow could have presented
to the sentencing court or how such information likely
would have resulted in a lesser sentence. At sentencing,
Goodrow advanced the petitioner’s drug addiction and
mental health history as mitigating evidence on several
occasions. Although the petitioner claims that Goodrow
did not know the petitioner’s true medical history at the
time of sentencing, the petitioner failed to demonstrate
how, if at all, his correct medical information would
have differed from Goodrow’s representations or how
such information would have resulted in a lesser sen-
tence. See Mejia v. Commissioner of Correction, 48
Conn. App. 230, 233, 716 A.2d 894, cert. denied, 245
Conn. 902, 719 A.2d 1163 (1998). ‘‘Because this court
is constrained to evaluating demonstrable realities, we
will not engage in mere speculation.’’ Edwards v. Com-
missioner of Correction, 87 Conn. App. 517, 526, 865
A.2d 1231 (2005).
Accordingly, the petitioner has failed to demonstrate
that there is a reasonable probability that, but for coun-
sel’s errors, ‘‘the sentence would have been lighter than
the sentence actually imposed.’’ (Internal quotation
marks omitted.) Crawley v. Commissioner of Correc-
tion, supra, 141 Conn. App. 667. Therefore, we agree
with the habeas court that the petitioner failed to dem-
onstrate that he was prejudiced in this matter. ‘‘Because
the petitioner failed to establish that he was prejudiced
by [counsel’s] deficient performance, he cannot demon-
strate that the issues pertaining to this claim are debat-
able among jurists of reason, that a court could resolve
those issues differently or that the questions raised
deserve encouragement to proceed further.’’ Sanders
v. Commissioner of Correction, supra, 169 Conn.
App. 824.
II
The petitioner’s second claim of ineffective assis-
tance in connection with his guilty pleas is that those
pleas were not entered intelligently or voluntarily due
to Goodrow’s erroneous advice that he had no viable
defense of lack of intent to commit robbery by reason
of voluntary intoxication at the time of the charged
offenses. The petitioner argues here, as he did on his
first claim, that Goodrow was ineffective in giving the
wrong medical records to Zeman to examine for the
purpose of determining if they contained evidence that
might support the defense of lack of intent to commit
robbery due to involuntary intoxication. He also argues
that she otherwise failed to take steps to inform herself
as to the effects of smoking ‘‘illy,’’ a drug with which
neither she nor Zeman was previously familiar, on a
person’s capacity to form an intent. The petitioner
argues that had Goodrow conducted an adequate inves-
tigation as to the intoxicating effects of ‘‘illy,’’ taken
alone or in combination with heroin, there is a reason-
able probability that he would not have pleaded guilty
and instead would have insisted on going to trial.
Although the petitioner, as previously noted, has raised
a colorable claim, debatable among jurists of reason,
as to whether his counsel rendered deficient perfor-
mance by transmitting the wrong medical records to
the consulting psychiatrist, then basing her advice to the
petitioner upon the psychiatrist’s misinformed opinion;
see part I of this opinion; we agree with the habeas
court that the petitioner failed to establish that he was
prejudiced by that alleged deficiency in this case. We
thus conclude that the habeas court did not abuse its
discretion in denying his petition for certification to
appeal from its judgment denying the habeas petition
on that ground.
The following facts are necessary for our disposition
of this claim. In the June 2, 1996 robbery of a Mobil
gas station, the victim reported that the petitioner
entered the store, pretended to purchase candy and,
while the victim was in the process of making change,
the petitioner produced a gun and demanded money.
The victim also reported that when he responded slowly
to these demands, the petitioner struck him several
times in the head with the pistol, took money from the
register, and fled from the scene.
In the June 15, 1996 robbery of the same Mobil gas
station, the same victim reported that the petitioner
entered the store, pointed a gun at him, and demanded
a pack of cigarettes. The victim was then instructed
not to move, at which time the petitioner walked behind
the counter, struck the victim several times in the head
with the pistol, and demanded that he open the register.
At some point during the course of this robbery, a cus-
tomer entered the store to pay for gasoline. The peti-
tioner then represented that he was the cashier and,
after he took the customer’s money, he fled the scene.
The June 26, 1996 robbery occurred, yet again, at the
same Mobil gas station. Moments after the petitioner
entered the store, the cashier—who had twice before
been the petitioner’s victim—motioned to his friend
that the petitioner was the man who had previously
robbed him. This friend then exited the store and
retrieved a second employee, who was outside assisting
a customer. As the second employee entered the store,
the petitioner pointed a gun at him and told him to turn
around. After complying with the petitioner’s order, the
petitioner hit him several times in the head with the
handgun. The petitioner then turned his gaze back upon
the cashier and told him to ‘‘move back.’’ The petitioner
then demanded that the victim open the cash register.
After opening the register, the petitioner demanded to
know where the twenty dollar bills were located. When
none could be found, the petitioner struck the victim
in the head with the handgun. The petitioner then
removed the money from the register, took several
packs of cigarettes, and fled from the scene. When the
police arrived, the second employee stated that he knew
the petitioner by the street name, ‘‘Baby-J.’’ After view-
ing two separate photographic arrays, the second
employee positively identified the petitioner as the man
who had robbed the store.
The events of the June 27, 1996 felony murder are
summarized as follows. In his voluntary statement to
the police, the petitioner confessed that he had planned
the robbery with his codefendant, Wright. The peti-
tioner stated that prior to the robbery, he and Wright
had agreed that the petitioner would rob a convenience
store, Wright would be the getaway driver, and they
would split the proceeds afterward. On the night of
June 27, 1996, the petitioner claims that he smoked two
blunts containing heroin and ‘‘illy,’’ which ‘‘made him
crazy.’’ At approximately 11 p.m., the petitioner entered
Dan’s Shell Station armed with a handgun. Before the
petitioner could rob the store, however, another cus-
tomer entered the store to purchase a gallon of milk.
This witness recalled that as he approached the store,
the petitioner was near the register, but that as soon
as he entered the store, the petitioner walked away
from the register and proceeded down another aisle.
The witness then purchased a gallon of milk and exited
the store. After the witness left the store, the petitioner
reapproached the register, pointed a handgun at the
victim, and demanded money. The same witness
recalled that as he looked back into the store from
the parking lot, he observed the petitioner holding the
victim down with his left hand, while hitting him with
the gun in his right hand. The petitioner claimed that
during his struggle with the cashier, his gun accidentally
discharged, killing the victim. After he shot the victim,
the petitioner walked behind the counter and proceeded
to take money from the register.
Moments after the petitioner shot the victim, a second
witness, who had not heard the gunshot, approached
the store from the side opposite where the first witness
had come from. This second witness testified that as
he reached the door, he observed the petitioner walk
out from behind the counter, stumble over the victim’s
body, and drop some money on the ground. The peti-
tioner then stopped and calmly picked the fallen money
off of the ground before exiting the store in the direction
of the first witness. After realizing what had just
occurred, the second witness returned to his truck so
that he could continue to observe the petitioner. He
then observed the petitioner walk calmly across the
parking lot, down Flatbush Avenue, and enter the pas-
senger seat of a car with its lights turned off, which
was parked behind some bushes ‘‘like it didn’t want to
be noticed . . . .’’
In addition to these facts, both Goodrow and the
petitioner testified about the petitioner’s use of heroin
and ‘‘illy’’ during the habeas trial. On direct examination,
Goodrow acknowledged that the petitioner was the first
client that she had ever represented who claimed to
have committed a crime while under the influence of
‘‘illy.’’ She also stated that she typically relied on experts
to educate her as to the effects of various narcotics on
persons ingesting them. As such, she asked Zeman to
assess whether the petitioner’s use of ‘‘illy’’ might sup-
port a claim of lack of intent due to voluntary intoxica-
tion. After his evaluation, Zeman informed Goodrow
that, although he was unfamiliar with the effects of
‘‘illy,’’ he did not believe that the petitioner’s drug use
during the incidents from which his charges arose
would have supported a claim that he was unable to
form a criminal intent due to voluntary intoxication.
Despite Zeman’s unfamiliarity with the drug, Goodrow
stated that she did not conduct an independent investi-
gation into the effects of ‘‘illy.’’ Lastly, Goodrow testified
that she relied upon Zeman’s opinion when she aban-
doned this defense strategy and advised the petitioner
to plead guilty.
On direct examination, the petitioner testified that
he used several drugs on a daily basis during the month
of June, 1996, including heroin, crack cocaine, ‘‘illy,’’
and ‘‘wet.’’9 The petitioner claimed that he used heroin
and ‘‘illy’’ ‘‘every day . . . pretty much all day . . . .’’
He further claimed that, in addition to his daily use
of twelve to fifteen packets of heroin, he purchased
between eight and ten ‘‘pieces’’ of ‘‘illy’’ each day, at a
price of twenty dollars apiece.10 The petitioner stated
that, when he smoked ‘‘illy,’’ he felt ‘‘[t]otally different
. . . like [he] . . . [he] could do whatever, though, you
know, like, strong, angry . . . .’’ The petitioner further
stated that the effects of ‘‘illy’’ became stronger when
he mixed it with heroin. Lastly, the petitioner stated
that had he not been under the influence of ‘‘illy,’’ he
never would have been capable of committing these
crimes. With these additional facts in mind, we turn
now to the merits of the petitioner’s second claim of
ineffective assistance of counsel.
The petitioner argues that he received ineffective
assistance of counsel because Goodrow: (1) provided
incorrect medical information to Zeman, thereby dis-
crediting the petitioner’s statements regarding his drug
use during his psychiatric evaluation; (2) accepted and
relied upon Zeman’s opinion that the petitioner’s drug
use did not support a claim of voluntary intoxication,
despite the fact that Zeman admittedly had little experi-
ence with ‘‘illy’’; and (3) failed to further investigate the
intoxicating effects of ‘‘illy,’’ despite the fact that neither
she nor Zeman were familiar with the drug. The peti-
tioner further claims that, as a result of her inadequate
investigation, Goodrow was unprepared to handle criti-
cal junctures in the petitioner’s case, including: effec-
tively analyzing the strength of the state’s case,
obtaining the most favorable plea offer for the peti-
tioner, assessing the reasonableness of the state’s plea
offer, and advising the petitioner whether to proceed
to trial. The petitioner claims that, had Goodrow con-
ducted an adequate investigation into the effects of
‘‘illy,’’ there is a reasonable probability that he would
not have pleaded guilty and instead would have insisted
on going to trial.
The respondent, the Commissioner of Correction, dis-
agrees, and asserts that the petitioner failed to establish
how he was prejudiced in this case because: (1) Goo-
drow possessed independent knowledge of the petition-
er’s drug use, and thus she did not rely exclusively upon
Zeman’s opinion when she determined that the facts
did not support a claim of lack of intent due to voluntary
intoxication; (2) the petitioner failed to elicit testimony
or produce evidence that Zeman discredited the peti-
tioner’s statements during the psychiatric evaluation;
(3) based upon the number and severity of the crimes
with which the petitioner was charged, it was highly
unlikely that the petitioner would have insisted on going
to trial; and (4) the habeas court discredited the peti-
tioner’s testimony that he would have insisted on going
to trial. We agree with several of the respondent’s argu-
ments, and thus we agree with the habeas court that
the petitioner failed to demonstrate that he was preju-
diced by this aspect of counsel’s allegedly deficient
performance. Accordingly, we conclude that the habeas
court did not abuse its discretion in denying the petition
for certification to appeal.
‘‘[W]here the alleged error of counsel is a failure to
investigate or discover potentially exculpatory evi-
dence, the determination whether the error prejudiced
the defendant by causing him to plead guilty rather than
go to trial will depend on the likelihood that discovery
of the evidence would have led counsel to change [her]
recommendation as to the plea. This assessment, in
turn, will depend in large part on a prediction whether
the evidence likely would have changed the outcome
of a trial.’’ (Internal quotation marks omitted.) Hill v.
Lockhart, supra, 474 U.S. 59; Carraway v. Commis-
sioner of Correction, supra, 144 Conn. App. 472. ‘‘[A]
petitioner’s assertion after he has accepted a plea that
he would have insisted on going to trial suffers from
obvious credibility problems and must be evaluated in
light of the circumstances the defendant would have
faced at the time of his decision.’’ (Internal quotation
marks omitted.) Carraway v. Commissioner of Correc-
tion, supra, 475. Therefore, ‘‘the likelihood of an acquit-
tal or a shorter sentence is a factor to be considered in
assessing whether an attorney who had found different
evidence or considered advancing . . . [a theory of]
defense would have advised [her] client to reject a plea
offer and go to trial. Likewise, the credibility of the
petitioner’s after the fact insistence that he would have
gone to trial should be assessed in light of the likely
risks that pursuing that course would have entailed.’’
Id., 475–76. ‘‘The burden to demonstrate what benefit
additional investigation would have revealed is on the
petitioner.’’ (Internal quotation marks omitted.) Gonza-
lez v. Commissioner of Correction, supra, 127 Conn.
App. 459. This burden ‘‘is not met by speculation . . .
but by demonstrable realities.’’ (Emphasis in original;
internal quotation marks omitted.) Id., 458.
As a preliminary matter, we note that the petitioner’s
claim is stated broadly and reasonably could be inter-
preted as alleging an individual claim of ineffective
assistance of counsel as to each of his five guilty pleas.
We decline to assess each individual guilty plea, how-
ever, because each of his guilty pleas involved the same
type of criminal conduct and implicated the same theory
of defense. Thus, although our review of the substantive
law is limited to the charge of felony murder, the ratio-
nale underlying our conclusion applies with equal force
to the four remaining charges to which the petitioner
pleaded guilty in this case. We now address the substan-
tive law that the petitioner would have faced had he
proceeded to trial on the charge of felony murder.
The crime of felony murder is codified in § 53a-54c.11
‘‘In order to obtain a conviction for felony murder the
state must prove, beyond a reasonable doubt, all the
elements of the statutorily designated underlying fel-
ony, and in addition, that a death was caused in the
course of and in furtherance of that felony. . . . There
is no requirement that the state prove an intent to cause
death.’’ (Citation omitted.) State v. Castro, 196 Conn.
421, 428–29, 493 A.2d 223 (1985). In this case, the appli-
cable underlying felony was robbery. See General Stat-
utes § 53a-133. Robbery ‘‘consists of larceny committed
by the use or threat of the use of force, with the specific
intent to deprive another of property.’’ State v. Dwyer,
59 Conn. App. 207, 218 n.16, 757 A.2d 597, cert. denied,
254 Conn. 937, 761 A.2d 763 (2000); see General Statutes
§§ 53a-134, 53a-133, 53a-119. Thus, had the petitioner
elected to go to trial, the state would have assumed the
burden of proving, beyond a reasonable doubt, that he
had the intent to deprive another of his property by the
use of force or threat of force at the time the alleged
robbery occurred; see State v. Dwyer, supra, 218 n.16;
and that a death was caused in the course of and in
furtherance of that felony. See State v. Castro, supra,
428–29.
Because ‘‘the state must prove, beyond a reasonable
doubt, all the elements of the statutorily designated
underlying felony’’; (internal quotation marks omitted)
State v. Deleon, 230 Conn. 351, 362, 645 A.2d 518 (1994);
defense counsel may introduce evidence of intoxica-
tion, pursuant to § 53a-7, as evidence negating the peti-
tioner’s intent to commit the designated underlying
felony. A successful claim of voluntary intoxication,
however, requires proof that the level of intoxication
was so severe that it ‘‘affected the operation of the mind
of the accused and made him incapable for the time
being of forming a rational intent or of controlling his
will . . . .’’ State v. Stevenson, 198 Conn. 560, 570, 504
A.2d 1029 (1986). If a defendant puts forth evidence
that he was intoxicated at the time the alleged crime
occurred, ‘‘the burden remain[s] with the state to per-
suade the jury beyond a reasonable doubt that the
defendant, in spite of any intoxication, had the capacity
to, and did, form the [specific] intent’’ to commit the
crime. (Internal quotation marks omitted.) Id., 569.
Thus, had the petitioner proceeded to trial, his trial
counsel may have offered evidence of intoxication to
establish either that he lacked the ability to form the
intent to commit larceny or that, while acting with an
intoxicated mental state, his intent to take the property
of another did not amount to larceny, and thus that he
could not be convicted of robbery. See General Statutes
§ 53a-7; see, e.g., State v. Smith, 317 Conn. 338, 348–56,
118 A.3d 49 (2015) (holding that one cannot be con-
victed of attempt to commit robbery if he believes that
he owns the property he is accused of attempting to
take from another).
With these legal principles in mind, we conclude that
the petitioner has failed to present sufficient evidence
to support a finding that the defense of voluntary intoxi-
cation likely would have succeeded at trial, and thus
that he has failed to demonstrate that, had Goodrow
further investigated the effects of ‘‘illy,’’ she would have
changed her recommendation as to the plea. See Hill
v. Lockhart, supra, 474 U.S. 59. Our conclusion rests
upon several inadequacies in the record before the
habeas court, including, inter alia, the absence of evi-
dence or testimony regarding: (1) the psychological
effects of smoking ‘‘illy’’;12 (2) a more definite measure
of how much ‘‘illy’’ the petitioner ingested on the nights
in question;13 (3) how smoking ‘‘illy’’ reduces a person’s
ability to form intent; (4) whether Zeman actually dis-
credited any of the petitioner’s statements regarding
his drug use based upon the contents of the incorrect
medical records he examined; (5) how Zeman’s unfamil-
iarity with ‘‘illy’’ resulted in an erroneous opinion,
namely, that the facts of this case did not support a
viable claim of voluntary intoxication; or (6) whether
a different psychiatrist might have reached a more
favorable conclusion, based upon the facts of this case.
In the absence of such evidence, we are left to speculate
as to whether the defense of lack of intent due to volun-
tary intoxication likely would have succeeded at trial,
or thus whether Goodrow would have changed her rec-
ommendation as to the plea had she further investigated
the drug’s effects. ‘‘Because this court is constrained
to evaluating demonstrable realities, we will not engage
in mere speculation.’’ Edwards v. Commissioner of
Correction, supra, 87 Conn. App. 526.
Contrary to the petitioner’s assertion, we note that
the factual record actually supports a finding that, both
prior to and during the commission of each of these
robberies or attempted robberies, the petitioner acted
with the intent required for the commission of a rob-
bery, to wit: the conscious objective of depriving an
owner of his property by the use of force. For example,
the facts surrounding the first incident support a finding
that the petitioner maintained sufficient control over
his faculties to feign making a purchase, and to wait
until the cashier was in the process of making change
before displaying his handgun and attacking him for
the obvious purpose of stealing money from him by the
use of force. The facts surrounding the second incident
similarly support a finding that, when his effort to steal
from the clerk was interrupted by a customer, the peti-
tioner had the ability to think on his feet and pretend
that he was the cashier in order to conceal his crime
and prevent his apprehension. In the third incident, the
petitioner managed to control two employees simulta-
neously for the purpose of consummating a robbery,
as confirmed by his demand after beating both of them
to know where twenty dollar bills were located. We are
reminded, in so noting, that the petitioner testified at
the habeas trial that he routinely purchased pieces of
‘‘illy’’ for twenty dollars apiece.
The record before the habeas court also supports a
finding that the petitioner was capable of forming the
intent to commit robbery on the night of June 27, 1996,
when he shot and killed the cashier at Dan’s Shell Sta-
tion in West Hartford. First, the petitioner admitted that
he conspired with Wright to rob a convenience store
on that evening and to split the proceeds afterward.
These facts support a finding that the petitioner pre-
planned the robbery before he entered the store, and
acted with the conscious objective of depriving an
owner of his property by the use or threatened use of
force. Second, while the petitioner was inside the store,
but before he displayed his handgun, another customer
entered the store. At that point, the petitioner retreated
to another aisle and waited until the customer had com-
pleted his purchase and left the store. It was only after
the witness had exited the store that the petitioner
resumed the robbery. These facts support a finding
that the petitioner was aware of the consequences of
robbing the cashier in front of an eyewitness, and thus
that he made a conscious decision to postpone his rob-
bery until the witness had left the store. Finally, after
the petitioner left the store, he proceeded to the exact
location where Wright had parked the car, despite the
fact that this robbery occurred at night, that the car
was parked away from the immediate vicinity of the
store, and that the car was parked behind bushes with
its headlights turned off. These facts support a finding
that the petitioner was conscious of his surroundings
and of the nature of his conduct at the time of his
actions, that he was able to recall where Wright would
be waiting for him and how to get there, and further,
that he knew how to disguise his criminal act by calmly
walking away from the crime scene. The totality of
these facts support a finding that the petitioner had
ample control of his faculties on the night of June 27,
1996, thereby undermining, if not completely disprov-
ing, his claim of lack of intent due to voluntary intoxi-
cation.
Of greatest significance, however, is that the peti-
tioner has failed to establish, beyond mere speculation,
‘‘what benefit additional investigation would have
revealed . . . .’’ (Internal quotation marks omitted.)
Gonzalez v. Commissioner of Correction, supra, 127
Conn. App. 459. The petitioner presented no evidence
as to how his use of ‘‘illy’’ could have supported a
defense of lack of intent to commit robbery, how ‘‘evi-
dence [of illy’s intoxicating effects] likely would have
changed the outcome of a trial’’; Hill v. Lockhart, supra,474 U.S. 59; or how further investigation as to such
effects would have informed Goodrow’s judgment or
altered her recommendation as to the costs and benefits
of pleading guilty, a necessary predicate to establishing
that he was prejudiced in this case. See id.; see also
Carraway v. Commissioner of Correction, supra, 144
Conn. App. 472–73. As a result, we agree with the habeas
court that the petitioner failed to demonstrate that he
was prejudiced by this aspect of Goodrow’s perfor-
mance. ‘‘Because the petitioner failed to establish that
he was prejudiced by [counsel’s] deficient performance,
he cannot demonstrate that the issues pertaining to this
claim are debatable among jurists of reason, that a
court could resolve those issues differently or that the
questions raised deserve encouragement to proceed fur-
ther.’’ Sanders v. Commissioner of Correction, supra,
169 Conn. App. 824. Accordingly, we conclude that the
habeas court did not abuse its discretion in denying his
petition for certification to appeal as to his second claim
of ineffective assistance of counsel.
III
The petitioner’s third and final claim of ineffective
assistance in connection with his guilty pleas is based
upon his allegation that, at the time he entered those
pleas, Goodrow knew but failed to apprise the court
that he was under the influence of prescription drugs.
On the further basis of that allegation, he argues that,
as a result of being under the influence of prescription
drugs at the time of his pleas, he did not enter his pleas
voluntarily.14 We disagree.
The following additional facts are necessary for our
resolution of this claim. The petitioner’s DOC medical
records reveal that he was prescribed several different
medications while he was incarcerated in 1996 and
1997. These medications included Mellaril, Haldol, and
Risperdal. The records also reveal that the petitioner’s
medications and dosages fluctuated throughout April,
1997. The records, however, concern a time frame that
ended on April 23, 1997, approximately two weeks
before the date of the petitioner’s guilty pleas, on May 6,
1997. Apart from those records, there was no evidence
before the habeas court regarding the medication the
petitioner claims to have taken before he pleaded guilty.
The petitioner testified before the habeas court that,
on the date of his guilty pleas, he informed Goodrow
that he had taken prescription medication, but that she
instructed him to lie about it to the court. Specifically,
he claimed that she instructed him not to upset the
judge, and thus that if he were asked whether he had
taken any medication that day, he should say that he
had not. Contrary to the petitioner’s claims, Goodrow
testified that, before the petitioner pleaded guilty, she
met with the petitioner and reviewed the plea canvass
procedure with him. On the basis of that meeting, she
had no concerns that the petitioner was unable to under-
stand the nature of the proceedings against him. If she
had had such concerns, she further testified, she would
have notified the court. Later that afternoon, the peti-
tioner entered five guilty pleas after being canvassed
by the court, Schimelman, J.15
The petitioner’s sentencing occurred two months
later, on July 11, 1997. At the sentencing hearing, the
trial court, Espinosa, J., afforded the petitioner an
opportunity for allocution, at which time he made a
brief statement expressing his remorse for the murder
victim’s death.16 Before the court announced its sen-
tence, Goodrow confirmed that the petitioner was
deeply remorseful for the victim’s death, and informed
the court that he was then taking prescribed psy-
chotropic medication to help him cope with the trauma
of having taken the life of another person. The sentenc-
ing court did not inquire of the petitioner on that sub-
ject, and neither Goodrow nor the petitioner offered
details as to what medication he was then taking, what
was the dosage of such medication, how recently he
had taken such medication prior to sentencing, or how,
if at all, such medication affected his ability to compre-
hend what was happening in court.
On the basis of the foregoing evidence, the habeas
court found that ‘‘the petitioner possessed a state of
mind at the time of his guilty pleas such that those
pleas were entered intelligently, knowingly, and will-
ingly. . . . The court disbelieves his testimony to the
contrary. . . . At [the sentencing] hearing, the peti-
tioner never expressed a desire to withdraw his guilty
pleas. Instead, the petitioner cogently conveyed his
apology to the family of the deceased and his wish that
he could undo the harm he caused. Goodrow then noted
for the sentencing court that the petitioner was then
taking antipsychotic medications, in order to maintain
his mental health, but no identification of the medica-
tion was mentioned, nor whether the medication
reduced the petitioner’s ability to comprehend the pro-
ceedings in which he had participated.’’ After issuing
its memorandum of decision, the court denied the peti-
tioner’s petition for certification to appeal.
‘‘In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification, we necessarily must consider the merits of
the petitioner’s underlying claims to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous. In other words, we review
the petitioner’s substantive claims for the purpose of
ascertaining whether those claims satisfy one or more
of the three criteria . . . adopted by this court for
determining the propriety of the habeas court’s denial
of the petition for certification. Absent such a showing
by the petitioner, the judgment of the habeas court must
be affirmed.’’ Taylor v. Commissioner of Correction,
284 Conn. 433, 449, 936 A.2d 611 (2007).
Where a petitioner claims that he was under the influ-
ence of medication at the time he pleaded guilty, he
bears the burden of ‘‘demonstrating that [his] mental
condition was so impaired, by medication or otherwise,
that he did not understand the ramifications of his
actions when he entered his plea of guilty.’’ Id., 454. ‘‘The
habeas court is afforded broad discretion in making its
factual findings, and those findings will not be disturbed
unless they are clearly erroneous. . . . Thus, [t]his
court does not retry the case or evaluate the credibility
of the witnesses. . . . Rather, we must defer to the
[trier of fact’s] assessment of the credibility of the wit-
nesses based on its firsthand observation of their con-
duct, demeanor and attitude. . . . The habeas judge,
as the trier of facts, is the sole arbiter of the credibility of
witnesses and the weight to be given to their testimony.’’
(Citation omitted; internal quotation marks omitted.)
Id., 448.
In the present case, the record lacks any credible
evidence to support a finding that the petitioner was
under the influence of prescription drugs at the time
he entered his guilty pleas. The only evidence offered
by the petitioner was his uncorroborated testimony that
he took medication on that day and that Goodrow
instructed him to lie about it. The habeas court
expressly discredited that testimony. ‘‘The habeas
judge, as the trier of facts, is the sole arbiter of the
credibility of witnesses and the weight to be given to
their testimony.’’ (Internal quotation marks omitted.)
Joseph v. Commissioner of Correction, 117 Conn. App.
431, 433, 979 A.2d 568, cert. denied, 294 Conn. 906, 982
A.2d 1080 (2009). We will not disturb the habeas court’s
finding as it relates to the petitioner’s credibility.
Even if the petitioner did take prescription medica-
tion on the day of his pleas, moreover, he failed to
establish what medication he had taken, its dosage,
when it was taken in relation to when he pleaded guilty,
or what effect, if any, it had on his cognitive abilities.
We further note that the petitioner was canvassed by
the court, which asked him several questions about
his mental state, including whether he had taken any
medication that would affect his ability to understand
the nature of the proceedings against him. The peti-
tioner continuously stated that he was not under the
influence of drugs, alcohol, or medication. The court
even went so far as to inquire about a bruise under the
petitioner’s eye to determine if that injury might be
affecting his ability to understand the proceedings. The
petitioner answered in the negative. ‘‘It is well estab-
lished that [a] trial court may properly rely on . . . the
responses of the [defendant] at the time [he] responded
to the trial court’s plea canvass . . . .’’ (Internal quota-
tion marks omitted.) State v. Stith, 108 Conn. App. 126,
131, 946 A.2d 1274, cert. denied, 289 Conn. 905, 957
A.2d 874 (2008). There is no evidence in the record to
support the petitioner’s claim that he lacked an under-
standing as to the nature of the proceedings or the
consequences of his guilty pleas.
‘‘On the basis of this evidence, the habeas court rea-
sonably concluded that the petitioner had failed to
establish that his guilty plea was not the product of a
knowing, voluntary and intelligent decision. In particu-
lar, the habeas court reasonably found that the peti-
tioner had failed to adduce evidence sufficient to
sustain his burden of demonstrating that the petitioner’s
mental condition was so impaired, by medication or
otherwise, that he did not understand the ramifications
of his actions when he entered his plea of guilty.’’ Taylor
v. Commissioner of Correction, supra, 284 Conn. 454.
After ‘‘giving appropriate deference to the court’s fac-
tual findings, we conclude that the habeas court prop-
erly found that the petitioner’s plea was knowingly and
voluntarily given.’’ Carey v. Commissioner of Correc-
tion, 86 Conn. App. 180, 185–86, 860 A.2d 776 (2004),
cert. denied, 272 Conn. 915, 866 A.2d 1283 (2005).
‘‘Accordingly, we conclude that the petitioner has failed
to show that this claim involves issues that are debat-
able among jurists of reason, that a court could resolve
the issues in a different manner, or that the questions
are adequate to deserve encouragement to proceed fur-
ther. Thus, the habeas court did not abuse its discretion
when it denied the petition for certification to appeal
this claim.’’ Merle S. v. Commissioner of Correction,
supra, 167 Conn. App. 600.
The appeal is dismissed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The petitioner claims that in June, 1996, he ingested approximately fifteen
bags of heroin intranasally each day.
2
At the conclusion of the habeas trial, the court, Sferrazza, J., sustained
the objection by the respondent, the Commissioner of Correction, and
excluded from evidence a Department of Public Health fact sheet on ‘‘illy’’
because the petitioner failed to establish that the public defender’s office
routinely relied upon such publications, and thus the evidence was deemed
not relevant to the issue of whether trial counsel’s performance was constitu-
tionally deficient. See part II of this opinion. The petitioner’s habeas counsel
failed to submit any additional medical or scientific evidence regarding
either the chemical composition of ‘‘illy’’ or the effects of smoking the drug.
For purposes of this appeal, we take judicial notice that ‘‘[i]lly is the street
name for a drug consisting of a nonuniform mixture of phencyclidine (PCP),
wood alcohol, methanol and formaldehyde,’’ which is then smoked by the
user. State v. Billie, 47 Conn. App. 678, 680 n.2, 707 A.2d 324 (1998), aff’d,
250 Conn. 172, 738 A.2d 586 (1999); see also S. Chlebowski & C. Leonard,
‘‘The Forensic and Legal Implications of Water, Wet, or Fry,’’ 40 J. Am. Acad.
Psychiatry L. 270, 271 (2012) (noting that, in Connecticut, ‘‘illy’’ commonly
refers to dried marijuana that previously has been soaked in formaldehyde).
3
During the prosecutor’s recitation of the facts, it was alleged that a
witness observed the petitioner beat the cashier, and thereafter place the
gun to the back of his head and fire a single shot. The petitioner maintains,
however, that the gun discharged accidentally during his struggle with
the victim.
4
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
5
General Statutes § 53a-13 (a) provides: ‘‘In any prosecution for an offense,
it shall be an affirmative defense that the defendant, at the time he committed
the proscribed act or acts, lacked substantial capacity, as a result of mental
disease or defect, either to appreciate the wrongfulness of his conduct or
to control his conduct within the requirements of the law.’’
6
General Statutes § 53a-7 provides in relevant part: ‘‘Intoxication shall
not be a defense to a criminal charge, but in any prosecution for an offense
evidence of intoxication of the defendant may be offered by the defendant
whenever it is relevant to negate an element of the crime charged . . . .’’
7
The incorrect medical records were accompanied by a cover sheet, which
stated the petitioner’s correct name, inmate number, and birth date. The
records themselves, however, contained a different inmate number and a
date of birth that differed by approximately ten years.
8
The Saint Francis Hospital and Medical Center records, which were
generated in connection with the petitioner’s arrest on June 30, 1996, were
not offered as evidence in the habeas trial. We are therefore unable to
determine what impact these records had on either Goodrow or Zeman’s
evaluation as to the petitioner’s mental state.
9
The petitioner did not testify that he used crack cocaine or ‘‘wet,’’ in
combination with heroin and ‘‘illy,’’ prior to committing these crimes. Fur-
thermore, the issues raised on appeal are limited, in that the petitioner
alleges that Goodrow’s investigation into the claim of voluntary intoxication
was deficient only as it relates to her investigation into the petitioner’s use
of heroin and ‘‘illy.’’ We thus decline to address what additional effects, if
any, the use of crack cocaine or ‘‘wet’’ would have had on the petitioner’s
ability to form the intent to commit robbery in June, 1996.
10
The petitioner failed to further elaborate how much ‘‘illy’’ was contained
in each ‘‘piece.’’ Thus, the habeas record lacks sufficient evidence to deter-
mine the actual amount of ‘‘illy’’ that the petitioner claims he ingested on
the days in question.
11
General Statutes § 53a-54c provides in relevant part: ‘‘A person is guilty
of murder when, acting either alone or with one or more persons, such
person commits or attempts to commit robbery . . . and, in the course of
and in furtherance of such crime or of flight therefrom, such person, or
another participant, if any, causes the death of a person other than one of
the participants . . . .’’
12
See footnote 3 of this opinion.
13
See footnote 10 of this opinion.
14
Although a petitioner’s claim that his guilty plea was involuntary due
to his medicated state must ordinarily ‘‘be raised either on direct appeal or
by way of a motion to withdraw the plea in order to avoid procedural
default’’; Merle S. v. Commissioner of Correction, supra, 167 Conn. App.
594; the respondent, in this case, failed to allege either an abuse of the
writ or a procedurally defaulted claim in his return. See, e.g., Mejia v.
Commissioner of Correction, 98 Conn. App. 180, 195–96, 908 A.2d 581 (2006);
see also Practice Book § 23-30 (b). Accordingly, we address the merits
of the petitioner’s claim that his guilty pleas were involuntary due to his
medicated state.
15
The transcript concerning the canvass of the petitioner reads as follows:
‘‘The Court: Mr. Ramos, I’m going to ask you some questions; if you don’t
understand at any time you are to ask Attorney Goodrow, and we will take
as much time as necessary for you to fully understand what it is that you
are doing here today. Because if I accept these guilty pleas, you are going
to be bound by them, you are not going to be permitted to withdraw them.
So, it is very important that you fully understand the rights that you are
giving up and what it is that you are doing here today. So, don’t hesitate to
utilize the benefit of your attorney at any time that you need it. . . . So,
you have now pled guilty, according to my notes, of five felony offenses;
is that correct?
‘‘[The Petitioner]: Yes, Your Honor.
‘‘The Court: Have you had sufficient time to discuss each of the guilty
pleas to these five felony offenses with your lawyer?
‘‘[The Petitioner]: Yes, Your Honor.
‘‘The Court: And are you completely satisfied with the advice and assis-
tance that Attorney Goodrow has given to you?
‘‘[The Petitioner]: Yes, Your Honor. . . .
‘‘The Court: Are these pleas voluntary?
‘‘[The Petitioner]: Yes, Your Honor.
‘‘The Court: Is anyone forcing you to plead guilty?
‘‘[The Petitioner]: No, Your Honor. . . .
‘‘The Court: Are you under the influence of alcohol and/or drugs today?
‘‘[The Petitioner]: No, Your Honor.
‘‘The Court: Are you taking any medications whatsoever?
‘‘[The Petitioner]: No, Your Honor. . . .
‘‘The Court: I just want to be sure; you seem to have a mark under your
eye there . . . is that some kind of black eye or something?
‘‘[The Petitioner]: Yes, Your Honor.
‘‘The Court: All right, in any way does that injury affect your ability to
either understand what it is that I am asking you or you giving me answers
to the questions that I have asked you?
‘‘[The Petitioner]: No, Your Honor. . . .
‘‘The Court: Mr. Ramos, do you have any questions of your lawyer or me
with respect to this plea negotiated disposition?
‘‘[The Petitioner]: No, Your Honor.
‘‘The Court: Do you want the court to accept it?
‘‘[The Petitioner]: Yes, Your Honor.
‘‘The Court: Do either counsel know of any reason why the court should
not accept this plea negotiated disposition?
‘‘[The Prosecutor]: I know of none, Your Honor.
‘‘[The Petitioner’s Counsel]: No, Your Honor.’’
16
During his statement of allocution, the petitioner stated, ‘‘I want to
apologize to the family of the victim that I assaulted. I’m truly sorry. I wish
I could do something better to bring him back or something, but due to my
drug addiction led to this craziness action. I truly sorry about this.’’